Read Handbook on Sexual Violence Online
Authors: Jennifer Sandra.,Brown Walklate
The courts
Referring to the treatment of rape complainants within the court system as a ‘second rape’ has become a depressingly recurrent theme in international research (Adler 1987; Doyle and Barbato 1999; Koss 2000; Madigan and Gamble 1991; Martin and Powell 1994; Orth 2002). The victim becomes a witness within the adversarial justice system that operates in many parts of the world including North America, England, South Africa, Australia and New
Zealand. In the 1970s the trial process came under rigorous criticism for the ways in which victims could be interrogated regarding their previous sexual history, a process designed to induce shame, besmirch their morality and undermine their credibility as legitimate victims (Heenan 2002–03; Temkin and
Krah´e
2008; McDonald 1994; Scutt 1998; Young 1983). A major aspiration
within legal reform initiatives has been to limit the extent to which the victim’s previous sexual history can be disclosed in court, with many formal barriers to such disclosure now existing. In practice, however, defence lawyers have responded by becoming increasingly adept at using inferences to raise question marks within jurors’ minds regarding victim morality and credibility (Doyle and Barbato 1999; Jordan 2008; Scutt 1998; Temkin 2000; Temkin and
Krah´e
2008). This underscores the sentiment expressed by even some key
players within the criminal justice system that the success of reforms will always be compromised in an adversarial system that by its very nature enlists both sides as contestants within the battleground of the courtroom. In their recent review of the justice gap in sexual assault cases, Temkin and Krahe´ cite the case of a Queen’s Counsel in England who specialised in defending rape cases for many years until his conscience no longer allowed him to participate in what he termed ‘a very unfair contest’ (quoted in Temkin and Krahe´ 2008: 129). When police and prosecutors were asked in another study if they would recommend that a close friend or family member report a rape to police, most said they would (88 per cent of police and 85 per cent of Crown Prosecutors). However, when asked if they would recommend them taking this case through the court system, their responses dropped considerably to 59 per cent of police and 39 per cent of prosecutors (Mossman
et al
. 2009). In the trial arena, many knew that who wins does not always equate with a just and fair outcome.
In New Zealand one of the most dramatic recent cases to highlight the ways in which this system favours the defendant’s rights over the complainant’s occurred in an historic rape case involving a woman named Louise Nicholas (Nicholas 2007; Rowe 2009). She initially alleged having been raped as a teenager by three police officers in the 1980s, describing several repeat occurrences of police turning up on her doorstep with alcohol, looking for ‘sex’, in the small city in which she lived. Early attempts to hold these men accountable for raping her failed, partly through the perjury of a senior police ‘mate’, and the betrayal she experienced rendered Louise silent for many years (Kitchin 2007; Taylor 2007). When the case finally reached trial, she was portrayed as a ‘police groupie’ and a slut (
New Zealand Herald
2007), while there was a resounding silence in the courtroom regarding the backgrounds of the accused. When all three men were acquitted, media coverage showed only the one who was currently a serving police officer walking away celebrating his freedom (
Dominion Post
2007). It was months before the truth could be publicly revealed that the other men had been unable to leave the court with him because they were travelling in a prison van back to the prison in which they were currently serving custodial sentences for a similar-sounding pack rape of another woman. While such information was kept from the jury in case it was prejudicial to the defendants, no such discretion restricted the defence from portraying the complainant in as damning a way as possible.
The gross injustice of this case, along with several similar scenarios involving other women, led to the Prime Minister at the time, Helen Clark, ordering a Commission of Inquiry into Police Conduct with the aim of not only facilitating investigation of these particular cases but also assessing more generally police culture and the investigation of sexual assault offences (Bazley 2007). The Commission’s findings included identifying what Liz Kelly has termed ‘a culture of scepticism’ (Kelly
et al
. 2005) within the New Zealand police, with recommendations including the need for greater police training around adult sexual assault investigations and the adoption of a Code of Conduct to guide police officer behaviour (Bazley 2007; Rowe 2009).
This case provides a window into silencing on several levels. These include the initial self-silencing by the victim, followed by her later initial disclosure being silenced for many years by the responses of police personnel. When it was later revealed how many people in this community, and police station, knew of how sexually violent some officers were, accusations were made that a conspiracy of silence existed (O’Connor 2006). The police force’s reluctance to identify and punish offenders from within its ranks parallels the Catholic Church’s reluctance to hold abusing priests responsible for their wrongdoing, with fears regarding the tarnishing of institutional reputations translating in effect to collusion with the perpetrators and the continued silencing of their victims. The eventual trial of the three men in 2006, by which time two of the accused had left the police, was accompanied by the silencing of factors seen as potentially prejudicial to their fair trial. No such restraint was imposed on testimony and insinuations detrimental to perceptions of the victim’s character as a witness. A positive effect from the publicity accorded this trial, however, was its leverage in lifting the veil of silence surrounding the inequities of the existing system and the manner in which it mobilised many New Zealanders to agitate for reforms in this area. Since then a government Task Force into Sexual Violence has been held and research commissioned to review current responses and hopefully inform new developments (Kingi and Jordan 2009; Mossman
et al
. 2009; Triggs
et al
. 2009).
Today the question remains: to what extent do victims of rape continue to
feel silenced within the court process? Complainants still report finding it difficult to give their account fully and to feel heard within a system that appears more oriented to ensuring it is the accused who ‘gets their day in court’. They are required to give their evidence in response to questions, meaning that background details are often omitted that would help to contextualise the circumstances surrounding the rape (McDonald 1997; Temkin and Krah´e 2008; Young 1998). Aspects of the trial process that many complainants continue to find difficult include having to face the defendant in the courtroom and being subjected to cross-examination by the defence. While women attacked by stranger rapists can often consider it empowering to face the man who raped them in court (Jordan 2008), women raped by men they know may find it more difficult to confront the perpetrator again. Having to see him in court, and be seen by him, can be traumatic, rendering some women silent in their fear. Knowing this, defence counsel will sometimes manipulate the situation to shut down the complainant’s testimony. One way they may do this is by deliberately standing in a direct eyeline between the
complainant and the defendant while cross-examining her, making it impossible for her not to see the offender and feel intimidated (Kingi and Jordan 2009). As Matoesian’s analysis of courtroom talk demonstrated, the complainant is dominated and disqualified through the questioning, accusing and blaming that are endemic within trial processes (Matoesian 1993). In order to see the offender who raped them convicted, complainants need to not only withstand attempts to discredit their testimony and character but also display what Wendy Larcombe has described as ‘discursive competence, resistance and, indeed, verbal fortitude’ (Larcombe 2002: 146).
It is of little surprise that of the very few cases that progress to trial, even fewer result in the offender being convicted. Internationally there have been high levels of concern raised in recent years over the excessively high attrition rates in rape cases (Johnson
et al
. 2008; Kelly
et al
. 2005; Stern 2010; Temkin and Krahe´ 2008; Triggs
et al
. 2009). Much publicity has been given to what has even been termed the ‘attrition rate crisis’ in the UK, where analysis of a large data-set conducted for the Home Office indicated that the conviction rate for reported rape cases had been declining, reaching an all-time low of 5.6 per cent in 2002 (Kelly
et al
. 2005). A recent New Zealand analysis of adult sexual violation also showed that only 13 per cent of reported cases resulted in conviction (Triggs
et al
. 2009). The attrition process itself becomes a form of systemic silencing. At every stage of the disclosure process there is the potential for those hearing the victim to discredit the victim and in that discrediting to silence the voice of rape victimisation (Taslitz 1999).
While attention is often drawn to the many law reform measures introduced in recent years, the extent to which these have resulted in significantly improved experiences for rape complainants in court seems limited. Recent research involving interviews with judges and barristers identified a range of problems they perceived as linked to low conviction rates in rape cases, some of which persisted after being identified by barristers almost a decade earlier (Temkin 2000; Temkin and Krahe´ 2008). These issues included incompetence by police officers and prosecutors and ‘bad behaviour’ by defence counsel, as well as the rape myths and stereotypes held by many jury members (Temkin and Krah´e 2008: 141). To this list Temkin and Krahe´ also added the problematic attitudes of some judges, evident in their interpretation and application of the law and functioning in ways that limit the effectiveness of reform measures.
Further limitations inhibiting law reform success are also evident. For instance, while details regarding a complainant’s previous sexual history may not be permissible in court, crafty defence lawyers are skilled at finding ways to insinuate and smear jurors’ perceptions of victims (Heenan 2002–03; Kingi and Jordan 2009; Temkin 2000; Temkin and Krahe´ 2008). Similarly, the understandable reluctance of victims to report rape is presented in ways that insinuate that a delayed complaint should be interpreted as a false complaint (Doyle and Barbato 1999; Temkin 2000). By the end of a trial, some victims have expressed a hatred and contempt for the defence lawyer equal to, if not stronger than, the feelings they hold for their actual rapist (Jordan 2008). Complainants in cases resulting in the defendant’s acquittal may feel even more strongly muted by this experience, a fact I was reminded of as I was
finishing this
chapter. A woman who had endured years of sexual violence from a professional person of high credibility telephoned me, gutted at this man’s acquittal by a jury, and described how this verdict said only too clearly to her, ‘Get back in your box, woman.’ Recent qualitative research conducted with rape complainants revealed that while there were mixed views regarding their experiences of policing, all were united in their condemnation of court processes, describing these as ‘degrading’ and ‘traumatic’ (Kingi and Jordan 2009: 95). Thus, although the injustices of the court system for rape complainants have been widely identified and condemned, and various initiatives introduced in an attempt to improve victims/survivors’ experiences, the process continues to remain fraught, and women’s voices continue to be silenced.
It is not only within the justice system that victims of rape can feel silenced. The police and courts operate within the context of a society shaped by patriarchy and still characterised by high levels of victim-blaming and rape- supportive beliefs. The next
section raises concerns regarding how even those supposedly focused on victim/survivor well-being may inadvertently contribute to their silencing.
Formal and informal supports
Counselling and supporting victims/survivors of rape and sexual assault is demanding work, necessitating high skill levels as well as in-depth understanding of the complex dynamics involved. Many victims attribute much of their ability to survive to the support received, often emphasising the importance of being able to speak and be heard (Ahrens 2006; Campbell 2002; Kingi and Jordan 2009). Both formal and informal support systems have been recognised in this regard, with victims/survivors varying in the extent to which they depend on and value the roles of counsellors and rape advocates or family and friends. Feeling heard and believed by others is important, with supporters often being valued primarily for their abilities to listen and validate rather than for the proffering of good advice (Kingi and Jordan 2009).
While the capacity to hear and validate another person’s recounting of possibly the most traumatic events they have ever experienced is clearly significant, so also are the impacts resulting from negative or inappropriate responses to that recounting. Victims/survivors have described a range of ways in which some have felt invalidated and unheard by those they turned to for support (Campbell and Raja 1999; Campbell
et al
. 2001b; Jordan 2008; Kingi and Jordan 2009). One way this can happen is when counsellors operate within a preferred modality that may sit uncomfortably with a particular victim/survivor. For example, a woman attacked by a stranger home-invasion rapist described how the counsellor she saw insisted she pretend to be an angel floating over her life and describe what she saw; something too mystical and alien for this very practical woman to accomplish (Jordan 2008). Another baulked at a counsellor’s insistence that she pretend the rapist was sitting opposite her and start talking to him; ironically a stipulation over how she should speak that effectively silenced her from disclosing further (Jordan 2008).
A second way that can result in some victims/survivors feeling silenced is when those supporting them insist on treating them as either victims
or
survivors, rather than appreciating that they hold both identities within them. This is evident when, for example, an individual is viewed as passive, vulnerable and lacking all agency, and responded to accordingly. The ways they find to help themselves manage and survive an attack are overlooked and negated, and their recovery may be presented as necessitating dependence on, and protection by, others. In such a scenario their identity as a victim is reinforced in ways that silence their capacity for autonomy and survival.
A similar, reverse process can operate when surviving is emphasised in ways that trivialise women’s experiences of victimisation. This has occurred, for example, in contexts where family members may prematurely pressure victims to return to work and continue their lives as if nothing has happened, or act in ways that makes it difficult to even acknowledge the rape occurred (Jordan 2008). Either way, a part of them is silenced.
Individual counsellors and support agencies operate within a wider social and political context that also impacts on victims/survivors. When the blanket of silence smothering rape was shaken by the women’s movement in the 1970s, this enabled greater recognition of the extent of men’s violence against women and children. The challenges and campaigns that followed were not universally supported, however, and since then an angry backlash has sought to undermine the credibility of feminists and advocates working against violence (Faludi 1991; French 1992; Gavey and Gow 2001). By the 1990s the speaking out that characterised the 1970s was under attack from an array of mechanisms seeking to nail the blanket back in place and re-silence victims. One insidious weapon involves assaults on the credibility of those who have been victimised, achieved at times by a duplicitous playing of the victim card against victims. Thus while moves to professionalise services appear well intentioned, these typically result in a privileging of the voices of professionals in ways that silence and pathologise victims, rendering them susceptible to diagnosis, medicalisation and treatment for their mental ‘illness’ (Breckenridge 1999).
Such processes have been cemented even further into place this century, a recent example evident in New Zealand where in the last year the state has moved to reduce the capacity for support agencies to counsel rape victims in favour of reliance on professional psychologists (Binning 2010; Collins 2010). The ability to access funded support is now tagged to a mental health diagnosis having been made, placing the stigma of mental illness on victims of rape in ways that may detrimentally affect their future lives in a multitude of ways. Pathologising the victim also aids and abets the perpetrators of rape, enabling defence lawyers to launch further attacks on a complainant’s credibility. Once again, the state colludes with perpetrators and victims are rendered mute.
If even those trained to provide support can mute victims, how much more so those around them, family and friends, who are not only untrained but also struggling to manage their own feelings following the rape of a loved one. Victims/survivors have spoken of how their parents in particular may act from
These are all caring, decent people who would have sent wishes for a speedy recovery if I’d had, say, an appendectomy. Their early lack of response was so striking that I wondered whether it was the result of self-protective denial, a reluctance to mention something so unspeakable, or a symptom of our society’s widespread emotional illiteracy that prevents people from conveying any feeling that can’t be expressed in a Hallmark card.
In the case of rape, the intersection of multiple taboos – against talking openly about trauma, about violence, about sex – causes conversational gridlock, paralyzing the would-be supporter. We lack the vocabulary for expressing appropriate concern, and we have no social conventions to ease the awkwardness.
(Brison 2002: 12)
In a different context another woman recounted how a family member from overseas was due to visit her parents just a few days after she was raped. How to manage this situation became a perplexing family issue, resolved at the time by her mother insisting no mention should be made of the rape during what was intended to be a happy family reunion (Jordan 2008). Such a level of silencing and denial was almost more than her daughter could bear, even while knowing that her mother meant well and was trying to do the best for everybody.